A guide to the UPC and the UP - Flipbook - Page 379
18-112 R.191 RoP is broader than art.67 UPCA in that it provides, in addition to the information
specified in art.67 UPCA, that an order may cover “such other information as is reasonably
necessary for the purpose of advancing that party’s case”. R.191 RoP gives no further indication
as to what type of information is contemplated. Whilst it was suggested that this wording be
removed during the drafting stage as it extends beyond the legal basis provided by art.67 UPCA,
the wording has remained.
18-113 Orders to communicate information are subject to the same rules relating to the protection
of confidential information that apply to orders to produce evidence. 138 The same rules also
apply to the right of appeal (and the way in which the appeal will be handled) and the various
privileges set out in r.190(6) RoP. 139 Notably, the inference drawn from a failure to comply with
an order to produce evidence under r.190(7) RoP 140 does not apply to an order to communicate
information. However, it is likely that the Court will apply this same rule.
18-114 Further, there is no suggestion in r.191 RoP, unlike r.190 RoP, that the party subject to the order
will be given the opportunity to be heard before the order is made. However, the request must
be “justified and proportionate” and the party subject to the order has the right to appeal.
Since r.190(5) RoP applies, 141 the Court is required to take the interests of the third party into
account before making the order and may use its general case management powers under
r.9(1) RoP to hear representations from the party against whom the order is requested.
The Court will also have regard to its general obligation under art.56(2) UPCA to take the
interests of all parties into account and give any party the opportunity to be heard before
making an order, unless this is incompatible with the effective enforcement of the order.
138
139
140
141
r.190(1) RoP, second sentence.
r.191 RoP, last sentence. See paragraphs 18-91 to 18-94 and 18-101 to 18-106.
The Court will take the failure to produce evidence into account when deciding on the issue in question.
r.191 RoP, last sentence.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 369
